Dr. E. Sayed Ali v. Union Of India

ELIPE DHARMA RAO, J.

The petitioner was a native of Lakshwadeep and belong to the Scheduled Tribe community. He applied for Veterinary Assistant Surgeon post in Pondicherry and according to him, his selection was against the ST vacancy through UPSC on All India basis in the year 1990. The next avenue for promotion is to the post of Joint Director. According to the petitioner, he was eligible for next promotion as Joint Director in any roster since 1.2.1996 and when vacancies arose to the post of Joint Director, as per 40 point roster, there was a point for ST category and he had represented to the first respondent to consider his case against that point, but the same was denied. In O.A.No.364 of 1999, dated 19.4.2001, the Tribunal had repelled the contention that migrant SC/ST cannot be granted promotion to the post of Joint Director and despite passage of more than 14 years of service, the petitioner continue to remain in the same cadre, having not promoted even once. The next promotional post of Joint Director was created in the year 1993 by enmass upgradation of the post of Deputy Director and there are 11 sanctioned posts in the said cadre and if reservation rule was applicable, point No.7 and 14 of the Communal Roster should have been filled by SC/ST candidates respectively.

2. The further case of the petitioner is that though he was eligible and there were vacancies, during the DPCs conducted on 24.2.1999, 15.2.2000 and on 17.2.2001, his claim was not considered and by the fourth DPC held on 14.8.2002, the names of four officials including that of Dr.P.Padmanabhan/the fourth respondent herein were recommended. Admittedly, the fourth respondent belongs to SC community and by converting the post available for ST community, he was promoted. Hence, the petitioner has challenged the said promotion of the fourth respondent before the Tribunal.

3. The Tribunal, having observed that the promotion of the fourth respondent as Joint Director is illegal, arbitrary and unjust has quashed the same. It has also been observed that the petitioner being a migrated ST has no legal right to be treated as ST in the Union Territory of Pondicherry and as such he is not entitled to the benefit of reservation in the Union Territory of Pondicherry. Aggrieved, this writ petition is filed by the petitioner.

4. The learned counsel for the fourth respondent would justify the finding of the Tribunal, insofar as it rejecting the claim of the petitioner on the ground that he being a migrant ST, is not entitled for reservation in the Union Territory of Pondicherry. He has further contended that the reservation policy of the Central Government will not apply to the Union Territories and therefore, the reservation policy of the Central Government is not binding on the Union Territories. In support of his contentions, he has relied on the following judgments:

1. SATYA DEV BUSHAHRI vs. PADAM DEV AND OTHERS [1955 SCR 549],

2. MARRI CHANDRASHEKHAR RAO vs. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS [(1990) 3 SCC 130],

3.ACTION COMMITTEE ON ISSUE OF CASTE CERTIFICATE TO SCHEDULED CASTES AND SCHEDULED TRIBES IN THE STATE OF MAHARASHTRA AND ANOTHER vs. UNION OF INDIA AND ANOTHER [(1994) 5 SCC 244],

S 236],

5. SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T. CHANDIGARH AND OTHERS vs. KULDEEP SINGH AND OTHERS [(1997) 9 SCC 199],

6. STATE OF MAHARASHTRA vs. MILIND AND OTHERS [AIR 2001 SC 393]

7. E.V.CHINNAIAH vs. STATE OF A.P. AND OTHERS [(2005) 1 SCC 394] and

8. SONIA vs. ORIENTAL INSURANCE CO.LTD. & OTHERS [2007 (5) SUPREME 796].

5. In the first judgment cited above viz. SATYA DEV BUSHAHRI vs. PADAM DEV AND OTHERS [1955 SCR 549], a Three Judge Bench of the Honourable Apex Court by its judgment dated 25.5.1954, has held:

"... The President who is executive head of the Part C States is not functioning as the executive head of the Central Government, but as the head of the State under powers specifically vested in him under article 239. The authority conferred under article 239 to administer Part C States has not the effect of converting those States into the Central Government. Under article 239, the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Though the Part C States are centrally administered under the provisions of article 239, they do not cease to be States and become merged with the Central Government."

6. At this juncture, it is apt to mention that the above view taken by the Honourable Apex Court was modified by the same Bench of the Honourable Apex Court, since a Review Application was filed in Civil Miscellaneous Petition No.641 of 1954 by its judgment dated 18.10.1954 and the modified view of the Honourable Apex Court, which has been reported in 1955 SCR 561, is as follows:

"In view of Section 3(8) of the General Clauses Act, 1897, a contract with the Chief Commission in a part C State (in this case Himachal Pradesh Chief Commissioner) is a contract with the Central Government ...."

7. In the second judgment cited above viz. MARRI CHANDRASHEKHAR RAO vs. DEAN, SETH G.S. MEDICAL COLLEGE AND OTHERS [(1990) 3 SCC 130], a Constitutional Bench of the Honourable Apex Court, has held 'a person who is recognised as a member of ST/SC in his original State, will be entitled to all the benefits under the Constitution in that State alone and not in all parts of the country wherever he migrates.'

8. In ACTION COMMITTEE ON ISSUE OF CASTE CERTIFICATE TO SCHEDULED CASTES AND SCHEDULED TRIBES IN THE STATE OF MAHARASHTRA AND ANOTHER vs. UNION OF INDIA AND ANOTHER [(1994) 5 SCC 244], the Constitutional Bench of the Honourable Apex Court has held that 'a person belonging to SC/ST in relation to his original State, of which he is permanent or ordinary resident, cannot be deemed to be so in relation to any other State on his migration to that State for the purpose of employment, education etc.'

9. In S.NAGARAJAN vs. THE DISTRICT COLLECTOR, SALEM AND OTHERS [1997 (1) S.C. SERVICES LAW JUDGMENTS 236], the Honourable Apex Court has held that 'by interpolation of the documents, none can get a particular social status unless it is recognised as per the Presidential Notification/Order under Articles 341 or 342 of the Constitution.'

10. In SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T. CHANDIGARH AND OTHERS vs. KULDEEP SINGH AND OTHERS [(1997) 9 SCC 199], a Three Judge Bench of the Honourable Apex Court has held:

'In absence of ST population in the Union Territory of Chandigarh, SC candidate should have been considered for the vacancy reserved for ST"

11. In STATE OF MAHARASHTRA vs. MILIND AND OTHERS [AIR 2001 SC 393], the Honourable Apex Court has held that 'a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Articles 341 and 342.'

12. In E.V.CHINNAIAH vs. STATE OF A.P. AND OTHERS [(2005) 1 SCC 394], the Constitution Bench of the Honourable Apex Court has held that 'Article 341 indicates that there can be only one list of Scheduled Castes in regard to a State and that list shall include all specified castes, races or tribes or parts or groups notified in that Presidential List and further classification and/or regrouping by the State Legislature would tinker with the Presidential Notification issued under Article 341, which is impermissible.'

13. In SONIA vs. ORIENTAL INSURANCE CO.LTD. & OTHERS [2007 (5) SUPREME 796], the Honourable Apex Court has held that 'an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication.'

14. As could be seen from the counter affidavit filed by the third respondent and adopted by the first respondent, there is no ST population in the Union Territory of Pondicherry. It is also not in dispute that there is no Presidential Notification under Article 342 of the Constitution of India regarding ST candidates. Therefore, the question of any reservation for ST candidates in the Union Territory of Pondicherry does not at all arise.

15. In STATE OF MAHARASHTRA vs. MILIND AND OTHERS [AIR 2001 SC 393], cited supra, the Honourable Apex Court has held that 'a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Articles 341 and 342.' In view of this factual position, we deem it not necessary to go into or assess the judgments cited on the part of the fourth respondent.

16. But, on behalf of the petitioner, strong reliance has been placed on the judgment of the Honourable Apex Court in S.PUSHPA AND OTHERS vs. SIVACHANMUGAVELU AND OTHERS [2005 (1) S.C. SERVICES LAW JUDGMENTS 258], wherein a Three Judge Bench of the Honourable Apex Court, referring Marri Chandra Shekhar Rao's case and Action Committee case (cited supra) relied on by the learned counsel for the fourth respondent herein, has held that 'a person with SC/ST status hailing from a State in India, on his migration to the Union Territory of Pondicherry would have the benefit of the reservation made in the Union Territory of Pondicherry in respect of the SC/ST notified for the Union Territory of Pondicherry'. It has also been held that 'the Union Territory of Pondicherry having adopted a policy of Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law.'

17. But, it is to be mentioned that this judgment has been rendered by the Honourable Apex Court in the context of the selection to the post of Selection Grade Teachers, but not in the context of the promotions, as it is in the case on hand. Therefore, the above judgment of the Honourable Apex Court does not come to the rescue of the case of the petitioner.

18. From the materials available on record, we are able to see that when, aggrieved by the common order dated 20.10.2003 passed by the Tribunal in O.A.No.110 of 2003 (which is also impugned in this writ petition insofar as it relates to O.A.No.3 of 2003), the respondents 3 and 4 herein have filed W.P.Nos.35145 of 2003 and 17443 of 2004, a Division Bench of this Court, by the order dated 29.3.2005, relying on the above judgment of the Honourable Apex Court delivered in S.Pushpa's case, has passed the following order:

"The order of the Tribunal is set aside. The proceedings of the Departmental Promotion Committee which met to fill up the vacancy in the post of Joint Director of Animal Husbandry (Group A) with its recommendation of the writ petitioner's name (Dr.P.Padmanabhan/the fourth respondent herein) to the said post is set aside and the order appointing the writ petitioner is also set aside. The Union Territory of Pondicherry will convene a Departmental Promotion Committee Meeting on or before 30.4.2005 to consider filling up the post of the Joint Director of Animal Husbandry, for which vacancy arose in the respective years. The claim of the third respondent in the writ petition, a migrated scheduled caste candidate to the Union Territory of Pondicherry, will be considered along with the other claims. Whether the writ petitioner would come in the zone of consideration at all can also be taken up for consideration by the departmental promotion committee. Till such time the departmental promotion committee meets and sends its recommendations on which, the Union Territory of Pondicherry pass orders the writ petitioner would continue to hold the post of Joint Director of Animal Husbandry to avoid any administrative confusion and difficulties for the present. It is further made clear that if the recommendation of the departmental promotion committee is adverse to the writ petitioner and consequently the name of any other candidate is recommended for filling up the post of the Joint Director, Animal Husbandry, the writ petitioner will not hold on to the post of the Joint Director of Animal Husbandry which we have permitted to hold on and he has to demit his office immediately."

19. It seems, in compliance with the above directions of a Division Bench of this Court, the DPC met on 26.4.2005 for the Selection of Joint Director, Animal Husbandry Department (Group-A) Gazetted and noted that the 4th respondent Dr.P.Padmanaban (SC Candidate), who was promoted as Joint Director on 30.12.2002 is neither within the normal zone of consideration nor in the extended zone of consideration and hence, it did not find him eligible for promotion. It has also been observed that 'as regards the post reserved for ST, since no ST candidate is available, the same will be carried forward to three subsequent years and thereafter considered to be de-reserved as per rules, if no candidate is available in the normal zone of consideration/extended zone of consideration.'

20. Here we feel it apt to refer to a brief history of the reservations in India. Indian Judiciary has pronounced some Judgments upholding reservations and some judgments for fine tuning its implementations. Lot of judgments regarding reservations have been modified subsequently by Indian Parliament through constitutional amendments.

21. In STATE OF MADRAS vs. SMT.CHAMPAKAM DORAIRAJAN [AIR 1951 SC 226], the Honourable Apex Court has held that caste based reservations, as per Communal Award violates Article 15(1) of the Constitution and to invalidate this judgment of the Honourable Apex Court, the first Constitutional Amendment, introducing Article 15(4) was made.

22. Thereafter, in M.R.BALAJI vs. MYSORE [AIR 1963 SC 649], the Honourable Apex Court has put a 50% cap on reservations and almost all states except Tamil Nadu with 69% reservation under 9th Schedule and Rajasthan with 68% quota including 14% for forward castes, have not exceeded the 50% limit and the State of Tamil Nadu exceeded this limit of 50% in the year 1980 and though the State of Andhra Pradesh tried to exceed this limit of 50%, it was stalled by the High Court of Andhra Pradesh in the proceedings filed challenging such action of the Government. In INDRA SAWNEY vs. UNION OF INDIA [1992 SUPP. (3) SCC 217], the Honourable Apex Court has upheld implementation of separate reservation for other backward classes in Central Government jobs. It has also been ordered to exclude creamy layer of Other Backward Classes from enjoying reservation facilities, besides ordering to restrict reservations within 50% limit and declaring separate reservations for economically poor among forward castes as invalid.

23. In GENERAL MANAGER, S.RLY. vs. RANGACHARI [AIR 1962 SC 36], STATE OF PUNJAB vs. HIRALAL [(1970) 3 SCC 567], AKHIL BHARATIYA SOHIT KARAMCHARI SANGH (RAILWAY) vs. UNION OF INDIA [(1981) 1 SCC 246], it was held that 'reservation of appointments or posts under Article 16(4) included promotions and this was overruled in the Indra Sawheny's case (supra) and held that reservations cannot be applied in promotions. 77th Constitution amendment, introducing articles 16(4 a) and (16 4b) was effected to make this part of the judgement of Indra Sawheny's case as invalid. Thereafter, in NAGRAJ AND OTHERS vs. UNION OF INDIA AND OTHERS [AIR 2007 SC 71], the Honourable Apex Court has upheld this Constitutional Amendment.

24. When, admittedly, in the Union Territory of Pondicherry, there is no population of ST and hence there is no Presidential Notification under Article 342 of the Constitution of India regarding ST candidates in the Union Territory of Pondicherry, there cannot be any reservation for ST candidates. When there is no population of ST and no Presidential Notification under Article 342 of the Constitution was issued, the question of making reservation and notifying the vacancies for ST in the Union Territory of Pondicherry is a farce and nothing but playing fraud on the Constitution, which cannot be appreciated. Since, admittedly, there is no population of ST in the Union Territory of Pondicherry, the authorities should not have reserved a post for ST category. Therefore, the very initial appointment of the petitioner on the basis of reservation under the category of ST is contrary to the provisions of Constitution. However, even if it is admitted that since the petitioner has been appointed by direct recruitment by UPSC on the basis of All India selection and got appointment in the ST category, he cannot claim any benefit under ST quota in promotions. But, however, since the petitioner has been appointed and continuing in the post for the last many years, we do not propose to disturb him at this distant point of time. Therefore, we direct the Union Territory of Pondicherry not to make any reservation in favour of ST since there is no population of ST and there is also no Presidential notification under Article 342 of the Constitution.

25. In these facts and circumstances, it is apt to quote a Constitutional Bench judgment of the Honourable Apex Court in K.C.VASANTH KUMAR vs. STATE OF KARNATAKA [AIR 1985 SC 1495] wherein the Honourable Apex Court has held as follows:

"The extent of reservation under Articles 15(4) and 16(4) must necessarily vary from State to State and from region to region within a State, depending upon the conditions prevailing in a particular State or region, of the backward classes. The adequacy or otherwise of representation of the backward classes in the services has to be determined with reference to the percentage of that class in the population and the total strength of the service as a whole. The representation does not have to exactly correspond to the percentage of that class in the population; it just has to be adequate...."

26. In a recent judgment of the Honourable Apex Court in ASHOKA KUMAR THAKUR (8) vs. UNION OF INDIA [(2007) 4 SCC 361], the Honourable Apex Court has observed that after the 1931 census there had never been any castewise enumeration or tabulation.

27. When such is the situation, where the Honourable Apex Court has ruled that the adequacy or otherwise of representation of the backward classes in the services has to be determined with reference to the percentage of that class in the population, it follows that where there is no population of a particular caste or tribe, no reservation could be accorded to them. Further, as has been observed by the Honourable Apex Court in Ashoka Kumar Thakur's case (supra), there there had never been any castewise enumeration or tabulation so as to justify the reservation for ST in the Union Territory of Pondicherry. But, it is an admitted fact that there is no population of ST in the Union Territory of Pondicherry. In SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T. CHANDIGARH AND OTHERS vs. KULDEEP SINGH AND OTHERS [(1997) 9 SCC 199], a Three Judge Bench of the Honourable Apex Court has held that 'in absence of ST population in the Union Territory of Chandigarh, SC candidate should have been considered for the vacancy reserved for ST.' Therefore, following the above judgments of the Honourable Apex Court, it is to be held in no uncertain terms that when there is no population of ST in the Union Territory of Pondicherry, reserving a post to ST and thereafter converting the post to general category is contrary to the provisions of Constitution. It is a trite law that justice must be equitable. Justice to one group at the cost of injustice to other group is another way of perpetuating injustice. If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. At this juncture, it is also apt to quote a judgment of the Honourable Apex Court in AJIT SINGH (II) vs. STATE OF PUNJAB [(1999) 7 SCC 209], wherein the Honourable Apex Court has held that 'affirmative action stops where reverse discrimination begins.'

28. When it is an admitted position that after 1931, there had never been any castewise enumeration or tabulation and when there cannot be any dispute that there is increase in the population of SC/ST/OBC, the percentage of reservation fixed on the basis of population in the year 1931 has to be proportionately increased, by conducting castewise census by the Government. We hope that the Government of India will take all such mesures to achieve this goal, which is the need of the hour.

29. Therefore, we consider it appropriate to direct the Union Territory of Pondicherry not to make further reservations in respect of STs in the Union Territory of Pondicherry in future, so long as there is no ST population in the Union Territory of Pondicherry and in the absence of any Presidential Notification to that effect. Therefore, the claim of the petitioner cannot at all be granted and the judgments relied on by the learned counsel for the petitioner cannot also be relied on. Hence, all the exercises undertaken by the official respondents, proceeding on the premise that there is reservation for ST in the Union Territory of Pondicherry are liable to be quashed. As we have permitted the appointment of the petitioner and the 4th respondent was also promoted, we direct not to disturb the services of the 4th respondent till the date of his retirement.

30. In view of the above factual situation, we are not in a position to adopt the order passed by the Division Bench of this Court in W.P.Nos.35145 of 2003 and 17443 of 2004, dated 29.3.2005. Therefore, we are unable to affix our seal of approval to the findings of the DPC met on 26.4.2005 for the Selection of Joint Director, Animal Husbandry Department (Group-A) Gazetted and we direct to restore the promotion of the 4th respondent with immediate effects.

To sum up,

(i)In view of the admitted fact that there is no ST population in the Union Territory of Pondicherry and that there is no Presidential Notification under Article 342 of the Constitution, there cannot be any reservation for ST in the Union Territory of Pondicherry so long as there is no ST population in the Union Territory of Pondicherry and so long as there is no Presidential Notification under Article 342 of the Constitution. Therefore, the observations of the DPC met on 26.4.2005 for the Selection of Joint Director, Animal Husbandry Department (Group-A) Gazetted, regarding reservation of a post for the ST category cannot be appreciated.

(ii)Since, admittedly, the petitioner is a ST candidate, his very initial appointment, reserving a post for ST is held to be illegal. But, however, considering the fact that the petitioner is serving for the last many years, his services should not be disturbed. When the very initial appointment of the petitioner, as against the post reserved for ST, in the absence of any ST population in the Union Territory of Pondicherry, itself is illegal, he cannot cling on to the proposition that 'Rule of reservation is applicable not only to initial recruitment but also to promotion.' However, taking into consideration the length of service put up by him from the date of appointment we have now protected the appointment of the petitioner, it is to be made clear that he is not entitled for any reservation in the promotion and we protect the services of the petitioner till his date of superannuation.

(iii)Therefore, it follows that the entire exercise undertaken by the official respondents under the wrong assumption and notion, reserving a post for ST and filling it up is null and void and nothing but playing fraud on the Constitution. Hence, it is directed that the official respondents shall reconsider the entire issue on hand, keeping in mind the observations of this Court in this judgment, holding that there cannot be any reservation for ST in the Union Territory of Pondicherry, and restore the promotion of the 4th respondent immediately, since the claim of the petitioner lacks legal backing.

(iv)When it is the position that after 1931, there had never been any castewise enumeration or tabulation and when there cannot be any dispute that there is increase in the population of SC/ST/OBC manifold after 1931, the percentage of reservation fixed on the basis of population in the year 1931 has to be proportionately increased, by conducting castewise census by the Government. In the interest of the weaker sections of the society, we direct the Census Department of the Government of India to take all such mesures towards conducting the castewise census in the country at the earliest and in a time bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour.

With these observations and directions, this writ petition shall stand disposed of. No costs.

Rao To

1.The Chief Secretary, Union Territory of Pondicherry, Pondicherry-605001.

2.The Secretary, Union Public Service Commission, Dholpur House, New Delhi-110001.

3.The Secretary, Animal Husbandry and Animal Welfare Department, Government of Pondicherry, Pondicherry-605001.

4.The Registrar, Hon'ble Central Administrative Tribunal, Madras Bench, Chennai.

5.The Secretary to the Government of India, Census Department, New Delhi.

6.The Secretary to the Government of India, Law Department, New Delhi [ PRV / 16038 ]